This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In re:  Ronald Lee Waling,






Wanda Jean Waling,



Filed September 23, 2003

Klaphake, Judge


Pennington County District Court

File No. FX02166


Michael L. Jorgenson, Charlson & Jorgenson, P.A., 119 West Second Street, P.O. Box 506, Thief River Falls, MN  56701 (for respondent)


Alan B. Fish, 109 Second Street Northeast, Roseau, MN  56751 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Wanda Waling challenges the district court’s decision to award physical custody of the parties’ 12-year-old son to respondent Ronald Waling.  She argues that the district court abused its discretion in (1) disregarding and removing the guardian ad litem (GAL) as a party in the case; (2) considering the child’s stated preference to live with respondent; and (3) rejecting her allegations of improper conduct on the part of respondent and the parties’ older son.  Appellant also argues that the district court exhibited bias during the trial, as evidenced by its rulings against her.  Because the district court did not abuse its discretion or clearly err in its findings on the child’s best interests, in rejecting the recommendation of the GAL that the child reside with appellant, or in rejecting appellant’s allegations of improper conduct as unsubstantiated and based on unreliable hearsay, we affirm.



            Our review of a custody determination is narrow and “limited to whether the [district] court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.”  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996) (quotation omitted); see Lemcke v. Lemcke, 623 N.W.2d 916, 919 (Minn. App. 2001), review denied (Minn. June 19, 2001).  The overriding concern in custody determinations is the best interests of the child, which requires consideration of the factors listed in Minn. Stat. § 518.17, subd. 1(a) (2002).

            Here, the district court made detailed findings on each of the statutory best interests factors, and concluded that several factors weighed in favor of awarding custody to respondent, including (1) the child stated a preference to live with respondent on the family farm in Grygla; (2) the child has not adjusted well to his home, school, or community in Thief River Falls; and (3) respondent is more likely to encourage the child’s continued involvement in special education and his relationship with his older brother.  These findings are amply supported by the record and are not clearly erroneous.  Once a custody decision is supported with “defensible findings that address relevant best-interests factors,” there is little room for this court to question the district court’s balancing of those factors.  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).


            Appellant argues that the district court erred in “disregarding and removing the guardian ad litem as a party from this case.”  The appointment of the GAL here was permissive, not required.  Appellant requested the appointment under Minn. Stat. § 518.165, subd. 1 (2002) (providing that court “may appoint a guardian ad litem . . . to represent the interests of the child” and “advise the court with respect to custody”).  The district court appointed the GAL and directed her to carry out the responsibilities provided in Minn. Stat. § 518.165, subd. 2a (2002), which include conducting an independent investigation and advocating for the child’s best interests.  Thus, while the GAL was appointed by the court to investigate and advocate for the child’s best interests, nothing prohibited the court from disregarding the GAL’s recommendations or from discharging the GAL at the close of the proceedings.

            Contrary to appellant’s assertion that the district court erred in “throwing out all evidence and recommendations made” by the GAL, the GAL’s report was submitted into evidence and she was allowed to testify at trial.  While a district court must consider the recommendations of a GAL, it has the discretion to reject those recommendations, even without explanation, if the court makes its own detailed findings reflecting consideration of the best interests factors.  Rogge v. Rogge, 509 N.W.2d 163, 166 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994); Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).

            The district court here explained why it was rejecting the GAL’s recommendations:

            The Court has disregarded the Guardian Ad Litem’s report and testimony because of the Guardian Ad Litem’s minimal contacts with the parties and with any others, including teachers, who may have information about the child.  It is the Court’s opinion that the Guardian Ad Litem became fixated on the charges of [improper conduct] on the part of [respondent], which the Court finds to be without merit.  Since all of the people that the Guardian Ad Litem contacted testified, together with many others, the Court is in a position to evaluate the testimony as is the Guardian Ad Litem.  Therefore, the Guardian Ad Litem’s report and recommendations are disregarded.


The district court also made its own detailed findings on the best interests factors, which supported its decision to award physical custody to respondent.

            Appellant complains that had she known that the court would disregard the GAL’s recommendations, she would have called additional witnesses and submitted more evidence.  As respondent notes, however, appellant presented testimony from seven witnesses during this three-day trial; she fails to specify what other evidence or witnesses she could have called.

            Appellant further complains that the district court “removed” the GAL based on evidence not in the record and the district court failed to make findings in its appointment order regarding the GAL’s qualifications, which are required by Minn. R. Gen. Pract. 908.02 (requiring court to make specific findings regarding qualifications of GAL who is ordered to conduct custody evaluation).  These last complaints, however, support the district court’s decision to reject the GAL’s recommendations and do little to further appellant’s claim that the GAL’s recommendations should have been followed.


            Appellant argues that the district court erred in considering the child’s preference to live with respondent.  A child’s stated preference to live with one parent over another is one factor to consider when determining a child’s best interests.  Minn. Stat. § 518.17, subd. 1(a) (2002).  Here, all parties and most of the witnesses agreed that the child’s stated preference was to live with respondent on the family farm in Grygla.  Although one witness, a therapist who saw the child twice, questioned whether the child had the emotional maturity to state a preference, the therapist acknowledged that he had not seen the child for over five months and that he could not render an opinion regarding the child’s current maturity level.

            Appellant also argues that the child’s stated preference was inadmissible hearsay.  But appellant did not object to evidence regarding the child’s preference, and she and her witnesses even admitted that the child had stated a preference that he wished to live with respondent.  The district court allowed the witnesses to testify regarding the child’s stated preference and did not need direct testimony from the child to consider this factor.  See Madgett v. Madgett, 360 N.W.2d 411, 413 (Minn. App. 1985).


            Appellant argues that the district court erred in not admitting testimony regarding the reputation in the community of the parties’ older son, who is now 21 years old.  She insists that this evidence was relevant because of the detrimental effect his reputation has on the child in the community and at school.

            At trial, appellant’s sister testified that she had taken her children out of the Grygla school partly because of what she had heard about the older son.  The district court sustained an objection to her testimony as based on inadmissible hearsay.  Appellant argues that this testimony should have been allowed as an exception to the hearsay rule under Minn. R. Evid. 803(21), which provides in pertinent part that “[r]eputation of a person’s character among associates or in the community” is not excluded by the hearsay rule.

            Appellant was not attempting to elicit evidence of her older son’s character; rather, she was trying to prove through hearsay evidence that he had engaged in improper conduct.  But even if his character was at issue, evidence of a person’s character is not admissible for the purpose of proving action in conformity therewith.  Minn. R. Evid. 404 (a)(3).  The district court did not abuse its discretion in excluding this testimony as hearsay.


            Finally, appellant argues that the district court was biased against her during trial.  She insists that bias was shown by the ex parte communications that took place between the court and the attorneys, the court’s decision to disregard the GAL’s report, the court’s consideration of facts not in the record that favored respondent, the court’s decision to ignore hearsay rules, and the court’s various other rulings that went against appellant.

            Bias is not shown merely because a litigant is unsuccessful.  A review of the record here, including the trial transcript, demonstrates that the district court’s actions were well within its discretion.  The district court was entirely free to assess the credibility of witnesses and to weigh evidence.  See Minn. R. Civ. P. 52.01.  There is nothing in the record to suggest that the district court was biased or had an interest in the outcome of the case.  See Minn. R. Civ. P. 63.02 (stating that judge shall not sit in any case if that judge is interested in its determination).